IN THESUPREME COURT OF FLORIDA

CASE NO. SC04-1671Lower Tribunal Nos. 04-CA-1861

1D04-3693AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC.; ET AL.

Appellants

vs.

GLENDA E. HOOD, ETC., ET ALAppellees

____________________________________________________________BRIEF OF AMICI CURIAE JOHNNIE B. BYRD, IN HIS OFFICIAL

CAPACITY AS SPEAKER OF THE FLORIDA HOUSE OFREPRESENTATIVES, and THAD ALTMAN, KEVIN C. AMBLER, RAFAEL

ARZA, CAREY BAKER, GUS MICHAEL BILIRAKIS, GASTON I. CANTENS,JENNIFER CARROLL, ADAM HASNER, ED HOMAN, JIM KALLINGER,

MARCELO LLORENTE, SANDRA L. MURMAN, DAVE MURZIN, MITCHNEEDELMAN, RALPH POPPELL, RAY SANSOM, JOHN K. STARGEL, and

BAXTER G. TROUTMAN, IN THEIR OFFICIAL CAPACITIES AS MEMBERSOF THE FLORIDA HOUSE OF REPRESENTATIVES,

In support of Respondents,

THOMAS R. TEDCASTLE DONALD J. RUBOTTOMGeneral Counsel Special CounselFlorida House of Representatives Florida House of Rep.Florida Bar # 0245291 Florida Bar # 01602711501 The Capitol 418 The Capitol402 South Monroe Street 402 South Monroe StreetTallahassee, FL 32399-1300 Tallahassee, FL 32399-1300Telephone: (850) 488-5644 Telephone (850) 488-3088Facsimile: (850) 487-1336 Facsimile (850) 488-6074

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TABLE OF CONTENTS

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I. Background and Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Summary of Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The ballot summary satisfies the requirements of the law . . . . . . 4 B. A “full disclosure” standard nullifies the privacy amendment, negating

Appellants’ demand that state privacy rights be noted on this ballot13

C. Appellants’ demands compromise the separation of powers andrepublican government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Compliance with Font Requirement . . . . . . . . . . . . . . . . . . . 20

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TABLE OF CITATIONS

CASES PAGE(S)American Civil Liberties Union of Florida, Inc., et al v. Glenda E. Hood, et al,

No. 2004-CA-1861, j. dismiss, (Fla. Leon Co.) . . . . . . . . . . . . . . . . 12

American Civil Liberties Union, et al. v. Glenda E. Hood, et. al,No. 1D04-3693 (Fla. 1st DCA),motion for certification at 2, (August 19, 2004). . . . . . . . . . . . . . . . . 7

American Civil Liberties Union, et al. v. Glenda E. Hood, et. al,No. 1D04-3693 at 3 (Fla. 1st DCA),appeal certified, No. SC04-1671 (August 25, 2004). . . . . . . . . . . . . 12

Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000). . . . . . . . . . . . . . . . . . passim

Askew v. Firestone, 421 So. 2d 151 (Fla. 1982). . . . . . . . . . . . . . . . . passim

Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912) . . . . . . . . . . . . . . . . . . 8

Gray v. Bryant, 125 So. 2d 846 (Fla.1960). . . . . . . . . . . . . . . . . . . . . . . . . . 3

Gray v. Golden, 89 So.2d 785, 790 (Fla. 1956). . . . . . . . . . . . . . . . . . . . . . 17

Grose v. Firestone, 422 So.2d 303 (Fla. 1982) . . . . . . . . . . . . . . . . . . . . . . . 9

Hill v. Milander, 72 So. 2d 796 (Fla. 1954). . . . . . . . . . . . . . . . . 6, 7, 12, 15

In re Duncan, 139 U.S. 449, 11 S. Ct. 573, 35 L. Ed. 219 (1891). . . 2, 3, 17

Kainen v. Harris, 394 So.2d 981 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . 15

Miami Dolphins Ltd. V. Metropolitan Dade County, 394 So.2d 981, 987 (Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

North Florida Women's Health and Counseling Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 14

Sancho v. Smith, 830 So. 2d 856 (1stDCA 2002) . . . . . . . . . . . . . . . . . 13, 15

Smathers v. Smith, 338 So. 2d 825, 826-27 (Fla. 1976). . . . . . . . . . . . . 8, 17

Smith v. American Airlines, Inc., 606 So. 2d 618 (Fla. 1992) . . . . . . . 8, 15

State ex rel. Citizens Proposition for Tax Relief v. Firestone,386 So.2d 561 (Fla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Sylvester v. Tindall, 154 Fla. 663, 18 So. 2d 892 (Fla. 1944) . 4, 5, 6, 7, 15

CONSTITUTIONAL PROVISIONSU.S. CONST. art. VI, § 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2FLA. CONST. art. I, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3FLA. CONST. art. I, § 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11, 12, 14FLA. CONST. art. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4FLA. CONST. art. XI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passimFLA. CONST. art. XIV (1838) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3STATUTESFLA. STAT. ch. 101.161(1) (2003) . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 6, 8, 18,FLA. STAT. ch. 101.171 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4. 6

LEGISLATIVE MATERIALJournal of the Florida House of Representatives, pp. 1519-1520 (April 30, 2004).

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OTHER SOURCESBLACK'S LAW DICTIONARY (6th ed. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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I.Background and Introduction

Amici Curiae, Speaker Johnnie Byrd, et al., are the House sponsor and co-

sponsors of Enrolled House Joint Resolution 1 (2004) approved by the Florida

House of Representatives on April 30, 2004, in a form earlier adopted in the

Senate. See House Journal, April 30, 2004, pp. 1519-1520.

House Amici fully endorse both the trial court’s reading of the proposed

amendment and that court’s ruling upholding the ballot language. House Amici

wish to contribute arguments explaining the appropriate rule of law. Amici will

also emphasize inviolable principles underlying the legislature’s designated

constitutional role representing the people in crafting and proposing changes to the

organic law, through an open and deliberative process. Amici will also highlight

the restraint our form of government demands of the judiciary when exercising

jurisdiction over such ballots.

II.Summary of Arguments

The governing law is §101.161, F.S., read in light of the express provisions

of Art. XI and Art. VI, § 1, of the Florida Constitution, and of §101.171, F.S.

Under this body of law, the ballot summary adequately advises Florida voters of

the nature of the choice before them. A ballot summary does not need to explain

every aspect of a proposal, nor is it per se “misleading” to include on the ballot the

fact that the text of an amendment acknowledges existing federal limitations on

governmental power.

Application of an extreme “full” disclosure doctrine requires a judicial

nullification of Art. I, § 23, the state’s privacy amendment, itself, negating the

1 The Court in Duncan stated:[T]he distinguishing feature of that form is the right of the people to choosetheir own officers for governmental administration, and pass their own lawsin virtue of the legislative power reposed in representative bodies, whoselegitimate acts may be said to be those of the people themselves; but, whilethe people are thus the source of political power, their governments,national and state, have been limited by written constitutions, and they havethemselves thereby set bounds to their own power, as against the suddenimpulses of mere majorities.

139 U.S. at 461.

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substantive basis of the challenge in this case.

Finally, popular sovereignty rooted in the state’s organic law, as well as the

republican form of government clause in the federal constitution, necessarily limit

the authority of the judiciary to acting as neutral arbiter of the rules, rather than

crafting those rules.

III.Arguments

This case involves the process of amending our organic law. In such matter,

the most fundamental principles of republican government constrain this court.

Republican government is guaranteed by the United States Constitution. Art. VI,

§ 4, U.S. Const. The sine qua non of a republican government is popular control

of the instrumentalities of government, described by President Lincoln as

“government of the people, by the people and for the people….” See, e.g., Black’s

Law Dictionary, Sixth Edition (1990), citing In re Duncan, 139 U.S. 449, 11 S.Ct.

573, 35 L.Ed. 219 (1891).1 The first provision of Florida’s Declaration of Rights

confirms this principle of popular political sovereignty. Art. I, § 1, Fla. Const.

In establishing organic law the direct action of the people must control. The

United States Constitution was drafted and ratified on the sole authority of “the

2 Action by the Legislature has always constituted the primary means of proposingconstitutional amendments in Florida, originally without any direct ratificationrequired by the people. See, e.g. Article XIV, Fla. Const. (1838) (requiringapproval by two consecutive legislatures, with publication of the proposal sixmonths before the intervening legislative election).3 The relevant provisions of Articles VI and XI were contemporaneously ratifiedby voters in separate state questions appearing on the 1968 ballot.4 Art. VI, §1, constitutes the entire expression of the state constitution directlyrelated to the content of election ballots. See Sylvester v. Tindall, 154 Fla. 663,

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People.” No court existed to test the question of ratification on any grounds. The

principle that constitutional change is a function of political action, rather than

governmental processes, is confirmed in the “self-executing” nature of Article XI

of the Florida Constitution. See State ex rel. Citizens Proposition for Tax Relief v.

Firestone, 386 So.2d 561 (Fla., 1980) (citing Gray v. Bryant, 125 So.2d 846

(Fla.1960)).

Thus, as to amending organic law, the people make the rules and those rules

are self-executing. The rules made by the people in their organic law currently

include the authority of the Legislature (representing all the people) to propose

amendments by joint resolution approved by three-fifths of the membership of

each house. Art. XI, § 1, Fla. Const.2 The rules also currently require submission

of such proposals to voters at a general or special election. Art. XI, § 5(a). Twice

before the election, voters must be notified of the content of the proposed

amendment by publication. Art. XI, §5(c). Finally, proposed organic law

becomes effective upon approval by “a vote of the electors….” Art. XI, §5(d).

Article XI presumes the existence of general elections and therefore must be

read in light of the provisions of Article VI3 which provides that elections “shall

… be regulated by law.” Art. VI, §1, Fla. Const.4 Pursuant to this provision, the

667, 18 So.2d 892, 895 (1944) (Noting that the predecessor to Art. XI did “notprescribe just how a constitutional amendment shall be submitted to the electorate. Nor does the constitution say anything about the form of the ballot.”) Thesetextual factors appear to have been disregarded recent cases.

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Legislature has enacted §§ 101.161 and 101.171, F.S., providing for ballot titles

and summaries and the posting of the amendment’s text at every polling place.

A. The ballot summary satisfies the requirements of the law.

The preliminary discussion above explains the source of the rules governing

this matter. Specifically, the ballot statute requires that “the substance of such

amendment…shall be printed in clear and unambiguous language on the ballot”

and that “the wording of the substance of the amendment…shall be embodied in

the joint resolution….” §101.161(1), F.S.

Many cases applying this statute share the procedural handicaps of this case:

hurried briefing and rushed decisions. Nevertheless, the cases are consistent on a

number of important points aptly applied by the trial court:

The standard is only “accuracy” – fair and reasonable communication. Fraud – a ballot summary that materially misstates the purpose or legaleffect of the amendment – and incomprehension are all that the courts canavoid if the legislature’s power to propose amendments is to bemeaningfully preserved.

Judgment at 4. This summary is amply supported by the applicable precedents.

Sylvester v. Tindall, 18 So.2d 892, considered the validity of the ballot

summary for the Game and Freshwater Fish Commission amendment.

Considering the proper application of similar constitutional and statutory

provisions that do not differ in any relevant aspect from those applicable in this

case, the Court stated:

5 §§ 99.16 and 99.17 are now §§. 101.161 and 101.171 respectively.

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Section 1 of Article XVII of our Constitution does not prescribe justhow a constitutional amendment shall be submitted to the electorate. Nor does the constitution say anything about the form of the ballot. Itdoes provide the manner or procedure by which the legislature may proposeamendments, and it also provides that an amendment so proposed by thelegislature shall be ‘published in one newspaper in each county where anewspaper is published for three months immediately preceding the nextgeneral election of Representatives, at which election the same shall besubmitted to the electors of the State, for approval or rejection…. Theproposed amendments shall be so submitted as to enable the electors to voteon each amendment separately.’…it is contended that the form of the ballot was not sufficient to put theelectorate on notice as to just what they were voting upon. We do have astatute, Sec. 99.16, F.S. 1941, F.S.A., which provides that the substanceof each amendment shall be printed on the ballot…. Furthermore,Section 99.17, F.S. 1941, F.S.A., provides that whenever an amendment oramendments to the constitution are to be voted upon at any election, theCounty Commissioners of each county shall have such amendment oramendments printed in clear and legible type and a copy thereofconspicuously posted at each voting precinct in such county upon the day ofthe election, such printed amendments to be furnished to them by theSecretary of State. We are inclined to the opinion that the form of the ballot pertaining to thisparticular amendment was sufficient to put the electorate on notice as tothe amendment they were voting upon, especially in view of the threemonths publication of the amendment and the posting of a completecopy of it in each voting place.

Sylvester at 668, 18 So. 2d at 895 (citations omitted) (emphasis added)5.

In Hill v. Milander, 72 So.2d 796 (Fla. 1954), the Court considered the

adequacy of the ballot measure submitted under a special law establishing a

municipal charter subject to approval of the local voters. Opponents argued the

entire charter should have been placed on the ballot. On the applicable rule of

law, the Court stated:

In numerous instances we have held that the only requirements in a electionof this kind are that the voter should not be misled and that he have anopportunity to know and be on notice as to the proposition on which he

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is to cast his vote.… In this connection we take judicial knowledge of themany other constitutional Amendments of much greater length that havebeen submitted to and approved by the electorate of this State and whichhave become a part of our organic law. All that the Constitution requiresor that the law compels or ought to compel is that the voter have noticeof that which he must decide. It is a matter of common knowledge thatmany weeks are consumed, in advance of elections, apprising the electorateof the issues to be determined and that in this day and age of radio,television, newspaper and many other means of communicating anddisseminating information, it is idle to argue that every proposition on aballot must appear at great and undue length. Such would hamper instead ofaiding the exercise of the privilege of voting. It is a matter of commonknowledge that one does not wait until he enters the election booth todecide how he is going to cast his ballot. What the law requires is thatthe ballot be fair and advise the voter sufficiently to enable himintelligently to cast his ballot.

72 So.2d at 798. (citing Sylvester) (emphasis added).

Armstrong v. Harris, 773 So.2d 7 (Fla. 2000), decided the validity of the

ballot summary for an amendment proposed by joint resolution of the Legislature

and approved by voters in 1998. The Amendment involved a number of changes

to Article I, Section 17, including a power to alter the method of execution

retroactively. The Court determined that the ballot summary was invalid primarily

because it failed to disclose the chief purpose of the amendment. 773 So.2d at 18.

Arguing that this case involves “the very same [defects] held impermissible

in Armstrong,” Appellants rely on dicta in that case for the proposition that voters

are entitled to “cast a ballot based on the full truth” when asked to make a “radical

change” in state constitutional protections. Motion of Appellants Suggesting

Certification, p. 2, Case No. 1D04-3693 (1st DCA, Aug. 19, 2004) (quoting

Armstrong, 773 So.2d at 21). Appellants further assert that the ballot must include

“a full and fair explanation of the state constitutional rights to be lost.” Motion

Suggesting Certification at 2 (citing Armstrong, 773 So.2d at 17-18).

6 See also Smith v. American Airlines, Inc., 606 So.2d 618, 620 (Fla.1992)(“sufficient notice” but “not every detail”); Miami Dolphins, Ltd. v.Metropolitan Dade County, 394 So.2d 981, 987 (Fla. 1981)(“fair notice”).7 Many authorities cited by Armstrong, were not ballot accuracy cases. See 773So.2d at 12, f.n. 15 and accompanying text; 773 So.2d at 14, f.n. 19 andaccompanying text. Notably, Smathers v. Smith, 338 So.2d 825 (Fla. 1976),addressed the germaneness required of an amendment drafted to an existingprovision; Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912) addressed theauthority of legislative procedural rules in determining whether an amendment hadbeen “agreed to” as required by Article XI, Section 1.

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The “full truth” and “a full and fair explanation” are not, however, the

standard applied in Armstrong. The standard applied in that case was a “fair

notice” and “not misleading” standard, derived from the case law applying

§101.161, F.S., and its predecessors. See 773 So.2d at 12-13.6 The Court held

that the STATUTE defined the rule:

This accuracy requirement, which applies to all proposed constitutionalamendments, has been codified by the Legislature in chapter 101, FloridaStatutes (1997).

773 So.2d at 12. The Court noted that the statute “provides that only a title and

brief summary of the amendment’s “chief purpose” may be listed on the ballot.”

Id. at 13 (emphasis added). Further, the Court reiterated:

[T]he requirement for proposed constitutional amendment ballots is thesame as for all ballots…[T]he voter should not be misled…[The voter must]have an opportunity to know and be on notice as to the proposition onwhich he is to cast his vote…[T]he voter [must] have notice of that whichhe must decide…[The ballot must] be fair and advise the voter sufficientlyto enable him intelligently to cast his ballot.

Id. at 13 (quoting Askew v. Firestone, 421 So.2d 151, 154-55 (Fla. 1982)). The

opinion sheds no additional light on the content of the standard described above.7

See 773 So.2d at 13-16.

Applying the standard, the Armstrong majority noted two distinct but

8 Despite the court’s conclusion in Armstrong, state provisions identical to federalprovisions do have independent existence, even if dormant. In North FloridaWomen’s Health and Counseling Services, Inc., v. State, 866 So.2d 612 at 634, theCourt recognized differing levels of judicial scrutiny supporting similar state andfederal privacy rights that would apply even if the rights were identical.9 Unfortunately, the Court failed to give a persuasive reason why a previous“conformity amendment” case was not followed. See id. at 18, f.n. 27 (discussingGrose v. Firestone, 422 So.2d 303 (Fla. 1982)).

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related problems concerning the 1998 proposal. First, the proposed amendment

would “nullify” a range of important state rights, 773 So.2d at 18, because

changing the state excess punishment clause (both textually and by mandatory

interpretative guidelines to conform to the federal “cruel and unusual punishment”

provision) “effectively strikes the state clause from the constitutional scheme.” In

effect, the proposal repealed the state prohibition against “cruel or unusual

punishment.”8 But the ballot emphasized that the proposal required conformity to

U.S. Supreme Court Eighth Amendment jurisprudence while not disclosing the

significan “repeal.” Thus, the 1998 proposal “flew under false colors.”9

In addition to “false colors”, the Court held that the 1998 ballot “hid the

ball.” On this point, the majority provided a more persuasive rationale: the

complete absence of any ballot summary language indicating that non-death

penalty cases would be textually affected by a change in the punishment clause.

This nondisclosure was significant because the Court determined the “chief

purpose” of the amendment went beyond its impact on the death penalty. The

ballot summary, therefore, did not disclose the chief purpose of the amendment as

determined by the Court: nullifying the state protections against cruel or unusual

10 Though determinative, the chief purpose was disputed. See 773 So. 2d at 31(Justice Wells in dissent: “I agree with the subjective conclusion of the trial judgethat respondent’s argument [as to the chief purpose] is more persuasive.”).

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punishment. 773 So.2d at 18.10

In essential respects, Armstrong was very similar to Askew v. Firestone,

421 So.2d 151 (Fla. 1982). Askew concerned a legislative proposal to create a

financial disclosure requirement for former legislators engaged in lobbying. The

amendment would have removed an existing two-year constitutional ban on

lobbying. Like the state “cruel or unusual” punishment clause affected in

Armstrong, the proposed amendment would effectively nullify the lobbying ban.

While the ballot summary in Askew fully disclosed the proposed provision, it hid

the nullified provision from voters.

In controlling aspects, the present case differs from Armstrong and Askew.

The amendment proposed by H.J.R. 1, does not alter any existing language or hide

any nullifying effect. Rather, it creates a narrow impact on the rights of minors by

reauthorizing a particular class of legislation previously ruled unconstitutional.

There is no effect (no nullification of a present express provision) other than the

fully disclosed effect (authorization for parental notice legislation).

To confirm that there is no undisclosed effect, this Court should follow

Armstrong and objectively determine the effect of the proposal. The operative

language in the proposed amendment states:

Notwithstanding a minor’s right of privacy provided in Section 23 of ArticleI, the Legislature is authorized to require by general law for notification to aparent or guardian of a minor before the termination of the minor’spregnancy.

11 Amici do not argue that the “notwithstanding” language is meaningless. Instead, the phrase limits the amendment’s impact by clarifying that state dueprocess, equal protection, and other procedural safeguards are not abrogated by theamendment (inclusio unius est exclusio alterius). Regardless, the“notwithstanding” phrase is a technicality that does not alter the main effect andchief purpose of the proposed amendment: authorizing parental notification laws.

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The only effect of this language is the authorization of parental notice legislation.

The proposed language has only one impact on the protections afforded by Article

I, Section 23: it would eliminate the constitutional protection (of minors from

parental notice legislation) enforced in North Florida, 866 So.2d 612 (Fla. 2003).

The first sentence of the ballot summary adopted by the Legislature fully

discloses this singular effect:

Proposing an amendment to the State Constitution to authorize theLegislature to require by general law for notification to a parent or guardianof a minor before the termination of the minor’s pregnancy.

There is no other impact on the rights of minors. The phrase “notwithstanding a

minor’s right of privacy” included in the amendment itself is not even relevant to

this principle effect of the amendment.11 The proposed express legislative

authorization would be effective even without that clause.

Additional language, discussing the privacy amendment, might give more

information. But because the only alteration of minors’ privacy rights is the

authorization for parental notice legislation, such additional verbiage might, as

cautioned in Hill v. Milander, “hamper instead of aiding the intelligent exercise of

the privilege of voting.” 72 So.2d at 798.

The actual summary gives notice that constitutional rights are altered,

disclosing in the first phrase that the question is an “amendment to the State

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Constitution.” The first sentence clearly implies that the Legislature does not have

authority, and upon approval of voters would gain the authority, to enact parental

notice legislation. As the trial court concluded:

The amendment’s purpose is not to enact some general limit to the right ofprivacy under Article I, Section 23. Its purpose is to give the legislatureexplicit authority regarding a specific subject: all lawful authority necessary“to require by general law for notification to a parent or guardian of a minorbefore the termination of the minor’s pregnancy.” That specific purpose isclear from the ballot title and summary and that is enough.

Judgment at 7. The District Court of Appeals agrees that the chief purpose is

authorization of parental notification legislation. See Certification of Appeal as

Requiring Immediate Resolution by the Supreme Court of Florida, p. 3, Case

1D04-3693 (1st DCA, August 25, 2004).

Because this proposal does not involve a hidden “main effect” as was the

case in Armstrong, Askew too, the mention of surviving federal protections in the

ballot does not create the “false colors” situation disapproved in Armstrong. The

mere mention of federal protections or limitations does not constitute, by itself, a

defectively misleading disclosure. Sancho v. Smith, 830 So.2d 856 (1stDCA

2002). Sancho approved an extensive ballot summary that included these two

sentences:

The amendment permits any execution method unless prohibited by theUnited States Constitution. The amendment requires construction of theprohibition against cruel or unusual punishment and the proposedprohibition against cruel and unusual punishment to conform to UnitedStates Supreme court interpretations of the Eighth Amendment to the UnitedStates Constitution.

830 So.2d at 860. The 2002 ballot summary was not silent about the federal

protections questioned in Armstrong. But the “false colors” problem was avoided

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by adding clear disclosure of the previously concealed main effect and by

removing federal protections from the ballot title. Similarly here, the mere

mention of the federal limitations in the summary after the disclosure of proposed

new authority, does not wave a flag of protection that might mislead voters. It is,

as the trial court noted, technically accurate and not, in this context, invalidating.

To summarize, this case does not wave the “colors” of federal protections at

the voter while “hiding the ball” of a removal of a constitutional impediment to

parental notification legislation. The main effect is adequately disclosed in the

first sentence of the ballot summary and in the title. The ballot language,

therefore, gives fair notice and is not misleading.

B. A “full disclosure” standard nullifies the privacy amendment, negatingAppellants’ demand that state privacy rights be noted on this ballot.

To go beyond fair notice and require full disclosure of all significant effects

would nullify numerous provisions of our constitution, inviting voluminous

litigation, and create substantial instability in our organic law. While Appellants

assert the ballot summary should be invalidated for its failure to describe the

privacy rights affected by the proposal, those rights were created by the adoption

of the privacy amendment approved upon minimal ballot language:

Ballot Title: Right of Privacy

Ballot Summary: Proposing the creation of Section 23 of Article I of theState Constitution establishing a constitutional right of privacy.

See http://election.dos.state.fl.us/initiatives/fulltext/10-10.htm. The amendment

itself excepted open public records from any privacy expectation, but that

significant exception was not disclosed on the ballot. More importantly, for

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purposes of this case, the 1980 ballot summary said nothing about minors,

termination of pregnancy or limiting parental rights. Yet, the amendment did

nullify some rights of parents to the support of state laws assisting their

involvement in the lives of their dependent children. See North Florida, 773 So.2d

at 39-42 (Lewis, dissenting). If those effects can not be slightly altered by a new

amendment whose ballot summary does not fully disclose the details of its effects,

those effects could not have been imposed in the first place by voters who were

not apprised thereof. By the full disclosure standard proposed by Appellants, the

privacy amendment could not have been lawfully approved.

Counsel better than nullifying the privacy amendment, appears in an earlier

case:

In this connection we take judicial knowledge of the many otherconstitutional Amendments of much greater length that have been submittedto and approved by the electorate of this State and which have become apart of our organic law. All that the constitution requires or that the lawcompels or ought to compel is that the voter have notice of that which hemust decide.

Hill v. Milander, 72 So.2d at 798. Thus, the rules allowing old amendments

clarify the rules governing new ones.

C. Appellants’ demands compromise the separation of powers andrepublican government.

Ballot summary litigation has increased dramatically in recent years. One

reason is that the Florida Supreme Court has been tasked by statute with reviewing

every initiative petition that reaches a particular threshold in signatures.

§16.061(1), F.S. 2003. With a growing body of case law on ballot accuracy there

seems to have arisen an increased willingness of opponents of legislative

12 In addition to this case, the following cases were filed within 115 days of ageneral election: Smith v. American Airlines, Inc., 606 So.2d 618 (Fla. 1992);Kainen v. Harris, 394 So.2d 981 (Fla. 2000); Sancho; and Armstrong.

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proposals to appear in court shortly before a general election, endeavoring to

block a proposal for at least two years.12

In light of these effects, House Amici believe the Florida judiciary should

reconsider its previous willingness both to demand ever greater ballot accuracy

and to entertain late challenges in the case of legislative proposals. These two

aspects of ballot litigation have noticeably reduced the capacity of the people of

Florida to determine their own organic law through the most representative means.

Requiring earlier litigation, and limiting the application of Armstrong and Askew,

would limit these effects and help to preserve republican government.

Attorney General Robert Butterworth petitioned the Supreme Court of the

United States to consider whether this Court’s decision in Armstrong infringed on

the federal rights of Floridians to a republican form of government. Though the

Petition for Certiorari was denied, his argument raised important issues.

This case requires great deference, as previously observed by this Court:

…we approach the subject matter of the case mindful of our limited role inreviewing constitutional proposals which have been adopted by thelegislature for direct submission to the people. Another thing we should keep in mind is that we are dealing with aconstitutional democracy in which sovereignty resides in the people. It istheir Constitution that we are construing. They have a right to change,abrogate or modify it in any manner they see fit so long as they keep withinthe confines of the Federal Constitution. The legislature which approvedand submitted the proposed amendment took the same oath to protect anddefend the Constitution that we did and our first duty is to uphold theiraction if there is any reasonable theory under which it can be done. This isthe first rule we are required to observe when considering acts of thelegislature and it is even more impelling when considering a proposed

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constitutional amendment which goes to the people for their approval ordisapproval. It is in that framework that we limit our discussion to the critical issuewhich is here presented by the parties, and we rest our decision solely on thequestion of whether the amendment was proposed by the Legislature inconformity with Article XI, Section 1 of the Constitution.

Smathers v. Smith, 338 So.2d 825, 826-27 (Fla. 1976) (quoting Gray v. Golden,

89 So.2d 785, 790 (Fla. 1956)).

Armstrong rejected an argument that legislative proposals should be treated

with special favor, but the Court was not reminded then that the legitimate acts of

representative bodies may be said to be the acts of the people themselves. In re

Duncan, 139 U.S. at 461. Unlike initiative petitioners and appointed revision

commissioners, the Legislature speaks as the voice of the people. Unlike

amendments proposed by others, the submission of an amendment approved by the

requisite three-fifths of each house of the Legislature, therefore, constitutes

submission of the proposal to the people by their own agents for ratification of the

agents’ agreement. In such case, it is the electorate, through their Legislature,

submitting the question to the electorate. For this reason, in the absence of fraud

by the agent, the people should be allowed to rely on their agent, the Legislature,

and be allowed to consider a proposal as presented. For this reason, legislative

proposals should receive greater deference than other proposals. Comity between

branches requires no less.

While at times in dissent, Justices have continually counseled caution and

restraint when this Court has been asked to intrude between the Legislature and

the people with respect to proposed amendments. This caution and restraint,

though not determinative in Armstrong and Askew, should nonetheless guide the

13 Curiously, the majority in Armstrong found it important that “voters will nothave the actual text of the amendment before them in the voting booth” 773 So.2dat 12-13, but neglected s. 101.171 requiring posting the text in every polling place. Posting was significant in Sylvester, 18 So.2d at 895.

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Court to refrain from expanding the impact of those cases on the amendatory

process.

Comity and deference to the express mandates of the Constitution should

guide the Court to reconsider Armstrong’s neglect of factors such as posting the

text of amendments at the polling place.13 These should also guide the Court to

consider another remedy before striking a state question that must be placed on the

ballot as required by Article XI, Section 5. Neither a ballot title or summary is

required by the Constitution. §101.161, F.S., exists only for the convenience of

the voters to avoid overly long ballots and to aid them in identifying which ballot

question they are voting on. There is no constitutional impediment to an entire

amendment being placed on the ballot. Moreover, if §101.161, F.S., did not exist,

the Constitution would still mandate that a proposed amendment be presented to

voters in some form.

Consequently, the question arises whether a technical violation of a

statutory requirement must in this case give rise to a remedy that frustrates a

constitutional mandate. While recognizing that the judiciary has no authority to

rewrite a ballot summary, Smith v. American Airlines, Inc., 606 So.2d 618, Amici

suggest that if the Court determined that the ballot title and summary do not meet

the legal standard, the Court may sever the ballot summary portion of the joint

resolution and direct that the text of the amendment itself appear on the ballot.

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This remedy would uphold self-government and the constitutional mandate that an

amendment proposed according to the express requirements of Article XI “shall”

be presented to voters. After all, the statute requires that the “substance” appear

on the ballot. The full text of an amendment surely comprises the substance. This

remedy is particularly appropriate this case in which the proposed amendment is

short, easy to comprehend, and consists solely of new language in a stand-alone

section.

A republican form of government, separation of powers, and comity all

counsel restraint in judicially supervising the submission of constitutional

amendments proposed by the legislature for approval by the voters. These

principles also counsel a search for a remedy to a statutory violation that does not

frustrate a constitutional mandate that the amendment proposed by H.J.R. 1 “shall”

be submitted to the voters of Florida at the next general election.

IV.Conclusion

For the foregoing reasons, and for all the reasons, the judgment of the

Circuit Court should be affirmed. The parental notification question should be

submitted to the voters for their consideration as required by the Constitution and

statutes of the State of Florida.

Respectfully submitted,

______________________________

THOMAS R. TEDCASTLE DONALD J. RUBOTTOMGeneral Counsel Special CounselFlorida House of Representatives Florida House of Rep.Florida Bar # 0245291 Florida Bar # 01602711501 The Capitol 418 The Capitol

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402 South Monroe Street 402 South Monroe StreetTallahassee, FL 32399-1300 Tallahassee, FL 32399-1300Telephone: (850) 488-5644 Telephone (850) 488-3088Facsimile: (850) 487-1336 Facsimile (850) 488-6074

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this brief has been delivered by U.S.Mail to Larry Helm Spalding at 314 West Jefferson Street, Tallahassee, Florida32301, Rebecca H. Steele at P. O. Box 18245, Tampa, Florida 33579-8245,Randall Marshall at 4500 Biscayne Boulevard, Suite 340, Miami, Florida 33137-3227, Diana Kasdan and Louise Melling at 125 Broad Street, 18th Floor, NewYork, New York 10004, Helene T, Krasnoff at 1780 Massachusetts Avenue NW,Washington, DC 20036, and George Waas at The Capitol PL-01, 400 SouthMonroe Street, Tallahasse, Florida 32399-1050 this 8th day of September . 2004.

_________________________THOMAS R. TEDCASTLE

CERTIFICATE OF FONT

I hereby certify that this brief was prepared using Times News Roman 14 pointtype, a font that is proportionately spaced.

______________________________THOMAS R. TEDCASTLE